38 F. 47 -

38 F1d 47

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Case Text

eRAWFORD V. THE WELLS CITY.

47

CRAWFORD.". THE

CITy. 1

'(Diltrict Court, B. D. NeUJ York. February 8,1889.)
'1. MASTlllR AND SERVANT-INJURY TO STEVEDORE-NEGLIGENCE-LIABILITY 011'
Libelant was engaged in trimming grain under the hatch in the hold of a vessel, when seamen placed the hatch-cover on. Libelant stood aside while the cover was being put on, but afterwards resumed work on the mate's or· del'. Two of the seamen then attempted to spring the hatch·covers together, when one cover, which was greasy, slipped, and fell upon the libelant, caqsing injuries for which this suit was brought. Held, that.the vessel wasHable fodibelant's damage.
S.rim-FELLOW'SERVANT-GRAIN-TRIMMER AND SAILOR. VESSEL.

A grain.trimmer, employed by a contractor to assist in the grain with which a vessel is being loaded, is not the fellow-servant of a sailor on the ship.S

, In Admiralty. Action for personal injuries received by libelant, while engaged in trimming grain in the hold of the steam-ship Wells Oity, through the 'falling upon him of one of the ship's hatch-covers. . .,John I. Allen, for libelant. " E. BJ: (l.on001'8,· for the. steam-ship.
BENFlDICT, J. This action is brought to recover damages for injortes -:received by the libelant while he was engaged in trimming grain inlthe 'hold of the steam-ship Wells City, thtough the falling upon him of one 'Of the ship's hatch-covers; The libelant was a grain-trimmer, employed by'acontrMtor to work in triniming the cargo ofgrain then being . ·on' board the steam-ship. At the time ot' trimming 'was finished all but leveling off the grain under the hatch. ',;The. spaut had been removed, and,as it was raining hard, the mate bfthe ship'di. Tected three oithe crew to, put on the hatch-covers. The mate waS at the time in the hold with the libelant. 'When the placing oitha covers in position was commenced, warning seems to have been giveli to the men in the hold, and they stepped 'out from under the hatch in 'order ,:to be out of danger. While they were out of the hatch, the covers were ':allputinposition, and thereby the hold was so darkened as to indicate ·to.persons .below that the covers were' in place. Accordingly the mate , motioned the libelant that it was time for him to resume work,,'aridthe 'libelant, with others, thereupon stepped back into·the hatch; to conclude 'his work of trimming the grain in thehatchwa.y. After thenHm :had 'stepped, back· under the hatch, however, two of the sailors' undertook to "spring two of the'natch-cov6fs together; the covers ha:Ving failed to go 'home when laid down. In doing this, one oNhe mert lifted OIi'EH1f the
L · .·

1 Reported by Edward G. Benedict, Esq., of the New York bar. .£.ic!; "As to who are fellow-servants within the rule exempting the master from liability

48

FEDERAL REPORTER,

vol. 38.

covers, and the other lifted the other, and placed their edges together. Each cover weighed about 70 pounds, and they were very greasy at the time, owing to the dampened dust arising .from the grain. While the covers were thus being sprung together, ohe of them slipped, and fell into the hold below,striking the libelant, and causing the injuries for which be now sues. Several points are made on the part of the One is that the libelant was at the time of the accident the servant of the claimant, engaged in a common employment with the sailors who undertook to place the cover in position, and therefore cannot recover for negligence of It fellow-servant. Upon this point my opinion is that the relation of fellow-servant did not exist between the libelant and the mate who directed the placing of the covers, or eetween the libelant and the seamen who were engaged in handling the covers at the time the cover fell. Next, it is contended that the libelant's injuries are attributable to his own carelessness, because be resumed work under the hatch before the adjustment of hatch-covers was completed. But when the hatchcovers. were placed in position so as to exclude the light from those be. low, the libelant, in absence of notice to the contrary, was .entitJed to assume that the adjustment of the hatch-covers bad been completed, and especially so when the mate who had directed the placing of the hatchcovers indicated to him that it was time for him to resume his work in thf;l hatch. In my opinion, the libelant was not guilty of negligence in being under the hatch under the circumstances. Third, it is contended on the part of the claimant that it is not shown that the. falling of the hatch was caused by negligence. Upon this point my opinion is also adverse to the claimant. The evidence, as I understand it, shows negligence in the performance of the ship's work of putting on the hatch-covers. The negligence consisted in attempting to handle th", cover by It single man, instead of by two. The cover was greasy, and liable to slip, and in case of any slip it would be impossible for a single man to hold it, weighing, as it did, some 70 pounds. It was, in my opinion, negligence for a single man to attempt to handle the cover while springing it home under such circumstances, and espe. cially was it negligence to do so without warning to the men in the hatch, . after the covers had .been down in such a position as to indicate to the men below tbat the covers were in place. The libelant, instead of being warned. was, in legal effect, notified by the mate that the covers were in place. Under such circumstances, I think it must be held that negligence on the part of the ship has been shown, and under . ' the principJes stated in the case of The Kate Gann. 2 Fed. Rep. 241, af(firmed by the circuit court, 8 Fed. Rep. 719, the libelant is entitled to ,·J:!lcqver his damages of thevessel herself. Let there be a decree in favor of the libelant, with a reference to ascertain the amount of the damages sustained.

An affidavit for the removal of an action for false imprisonment from the circuit court of Cook county, III., to the United States circuit court, alleged that there had been four long jury trials involving these matters before the circuit court of Cook county, a hearing before a justice of the peace, the grand jury, the appellate court, and the directors of the board of trade; that the case involved the manner of doing business on the board of trade; that i,t had caused a goreat deal of talk around the court-house. and had become widely known; that many warehousemen. elevator men, brokers, commission men, and many thousands of people in and around Oook county had discussed it. and that through the influence of plaintiff and his friends. defendants believed a prejudice had grown up against them, who were non-residents. Held that, as the Illinois statute provides that a cause may be removed for local prejudice to some other court of competent jurisdiction in some other convenient county, to which there is no valid objection, the existence of, prejudice was not sufficiently shown to justify removal to the federal court; the affidavit shows that the prejudice is confined mainly, if not entirely, to Cook county.

Application for Removal. M. S. Robinson, in pro. per. BiBbee, Ahrfm8 &- Decker, for defendants.
BLODGETT, J. This is an application to this court for nn order for the removal of this case from the circuit court of Cook county, in the state of illinois, where the same was commenced, to this court, on the ground of prejudice or local influence against the defendants,-the defendants being citizf>ns of the state of Indiana, and the plaintiff a citizen of the state of Illinois. In Malone v. Railroad Co., 35 Fed. Rep. 625, it was held by Mr. Justice HARLAN that the "circuit courts of the United States cannot take cognizance of a case pending in a state court upon the ground of prejudice or local influence against the defendant, a citizen of another state, unless the circuit court in some proper way finds as a fact that such prejudice or local influence exists;" and the question is whether the defendants have made such proof as brings the application for removal within the principle laid down by the learned justice. The suit is an action on the case for false imprisonment, the declaration charging, in substance, that the defendants wrongfully, maliciously, and without probable cause, caused the arrest of the plaintiff under certain proceedings instituted pursuant to the criminal laws of the state of Illinois. The second section of the act of congress approved March 3. 1887, in 'regard to the removal of cases from the state to the federal courts, as the same is corrected and explained by the act of August 13, 1888, provides for the removal of causes from the state courts to the circuit courts of the United States, where the citizenship will allow the same, when it shall be made to appear to said circuit court that from prejudice or local in'fluence the defendant will not be able to obtain justice in such state court, or in any other state court to which said defendant may, under the laws